Friday, following two days of testimony from abortion specialists, providers, and the state’s top medical officer, a court in Michigan prohibited county prosecutors from enforcing the state’s 1931 ban on abortion for the foreseeable future.
The decision comes after the state Court of Appeals ruled earlier this month that county prosecutors were not bound by a May order and may enforce the ban following the U.S. Supreme Court’s decision to overturn Roe v. Wade.
Judge Jacob Cunningham of Oakland County filed a restraining order against county prosecutors hours after the August 1 judgment by an appeals court and in response to a plea from counsel for Democratic Governor Gretchen Whitmer.
While the majority of prosecutors in counties with abortion facilities have stated that they would not enforce the prohibition, Republican prosecutors in Kent, Jackson, and Macomb counties have stated that the 1931 legislation should be enforced.
Cunningham heard to arguments in Pontiac on Wednesday and Thursday before giving the preliminary injunction, which is anticipated to keep abortion lawful in the whole state until the Michigan Supreme Court or voters decide in the fall.
Michigan’s 1931 statute, which was enacted following the U.S. Supreme Court’s decision to overrule Roe v. Wade, prohibits abortion in all cases except where the mother’s life is in danger. A preliminary injunction ordered by Judge Elizabeth Gleicher in May prevented the dormant prohibition from taking effect retrospectively.
The state Court of Appeals eventually ruled that the preliminary injunction only applied to the attorney general’s office, meaning that some county prosecutors might charge providers with a crime.
Attorneys for Whitmer and Democratic prosecutors said that allowing county prosecutors to determine whether or not to enforce the 1931 prohibition would generate uncertainty and push many abortion providers to halt services.
“We cannot expect doctors to read the prosecutor’s thoughts and determine what he or she believes that life-saving exemption implies. Exactly this would occur if the preliminary injunction is not granted “During Thursday’s final remarks, Washtenaw County Prosecutor Eli Savit said:
In closing remarks, David Kallman, an attorney for two Republican county prosecutors, stated that obtaining a preliminary injunction is not the proper way to modify the law.
“It is the right of every person in the state of Michigan to weigh in, vote, or go via their elected officials in order to modify a law,” said Kallman.
In July, 753,759 signatures were submitted for a ballot measure attempting to codify abortion rights in the state’s constitution, which is likely to eventually determine the status of abortion access in Michigan. The amendment awaits final approval from the state’s Board of Canvassers for the November ballot.
Whitmer and Attorney General Dana Nessel, both a Democrat, have made abortion rights a central tenet of their reelection campaigns, therefore the state’s abortion laws are anticipated to have a significant influence on the November general election in this swing state.